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Baroness Anelay of St. Johns: My Lords, I am grateful to the noble and learned Lord the Lord Advocate for that explanation. I shall read carefully his words in Hansard. His closing remarks did much to reassure me with regard to Amendment No. 31 to which I have spoken. As I have remarked on previous occasions, I have no intention of clogging up the appeals process unnecessarily where that is of no material advantage to the appellant. I shall look with care at his words with regard to Amendment No. 29, and in particular Amendment No. 30. However, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 and 31 not moved.]

Clause 26 [Appeals involving issues that arise on appeal in other cases]:

The Deputy Speaker (Lord Lyell): My Lords, before I call Amendment No. 32 I must inform the House that if Amendment No. 32 is accepted I shall not be able to call Amendments Nos. 33 and 34.

Earl Russell moved Amendment No. 32:

Page 16, line 13, leave out subsections (2) and (3).

The noble Earl said: My Lords, this is a more far-reaching amendment. It deals with provisions in subsections (2) and (3) of Clause 26 which allow the Secretary of State, if she considers it possible that the result of an appeal would affect the determination of another, to require the tribunal or commissioner not to

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determine the appeal. That is curious language. The Secretary of State is a member of the Executive and must speak in that capacity. So we have the courts required by the Executive to take a particular type of action. That is not the language that I am used to finding in Acts of Parliament. The independence of the judiciary is a vital principle. It should be preserved. It should have at least a show of being preserved. That is not available here.

These provisions have caused some dismay to Judge Bassingthwaighte, the former president of the Independent Tribunal Service. He draws attention to a ruling by deputy commissioner Edward Jacobs who says:

    "The constitutional difficulty is that it is the Secretary of State who makes the decision that a case is to be so treated"--
that is treated as a test case.

    "The Secretary of State is a party [or at least would be a party if an appeal were allowed to be brought] and will be the one under the adjudication procedures to be introduced under the Bill who made the decision on the claimant's benefit which the claimant might now wish to challenge. This does seem very like a case of 'nemo judex in causa sua'. [No-one should be a judge in his own cause]".
We have here a power--shall I say startlingly expressed?--to do something about which there is at least room for some doubt as to the constitutional propriety. I am not at all happy about seeing that sort of provision in an Act of Parliament.

I am not happy either about how the provision might fare under Article 6, the fair trial provision, of the European Convention on Human Rights. It might appear, to put it no higher, to be casting doubt on the independence of the judicial tribunal which is making the ruling. As the noble and learned Lord will remember, that clause provides for a fair trial by an independent judicial authority. It will be a little difficult to assert that a tribunal to which the Secretary of State may so unambiguously give directions is independent. I hope that the Government can find some other way of going about this. It is not something with which we can be content. I beg to move.

Baroness Anelay of St. Johns: My Lords, Amendments Nos. 33 and 34 are grouped with the amendment. With the leave of the House I shall speak to them. On this occasion, I cannot be as extreme as the noble Earl, Lord Russell, and accept the amendment he has moved. But I understand the great misgivings he expressed about the clause.

Amendments Nos. 33 and 34 follow closely those which I moved with regard to Clause 25. As the noble Earl explained, Clause 26 deals with appeals which may be affected by other test cases. I believe that the arguments against my amendments here are not exactly the same as the arguments against the amendments I put forward to Clause 25. I noted that, with some mental agility, the Minister in another place tried to argue that the arguments were the same.

Amendment No. 33 deletes the words "it possible" from subsection (2), thus requiring a greater degree of certainty before the relevant powers can be used. Amendment No. 34 requires the Secretary of State to give notice to a panel member of her intention to

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exercise powers under Clause 26. That panel member is then given an opportunity to consider whether this is a case in which the exercise of those powers is appropriate. In other words, is the case under appeal in fact a look-alike case such that a decision in a lead case would affect its determination? If the panel member considers that there are grounds for believing that the lead case is not relevant to the decision on the appeal in question, he or she gives the Secretary of State notice to that effect. The Secretary of State is thus prevented from exercising her powers under Clause 26. The superior status of the appeal tribunal is thereby maintained.

If the tribunal goes on to make a decision with which the Secretary of State is unhappy, she can then appeal that decision and use her power to suspend payment of benefit under Clause 21(2)(c).

I cannot support the amendment which has been moved. I am grateful for the opportunity to speak to my amendments.

Lord Hardie: My Lords, I speak to Amendments Nos. 32 to 34.

Amendment No. 32 proposes to remove the Secretary of State's ability to direct how a tribunal or commissioner should handle a look-alike appeal. Amendments Nos. 33 and 34 would prevent the Secretary of State from exercising her power to direct the tribunal or commissioners when she had not secured the agreement of a panel member.

We had a detailed debate about Clause 26 at Committee stage of the Bill and I recognise the concerns that noble Lords voiced then and have repeated today. I should like to try to meet those concerns.

Clause 26 makes arrangements for look-alike cases which have gone to appeal. It is intended to prevent decisions being made on appeals which rest on an issue of law that is being challenged in the courts on another case. Its purpose is to reduce the burden on the appeal system which has become clogged up with look-alike cases which could be dealt with more efficiently by the department. It aims to enable tribunals and commissioners to focus their attention on other appeals and deal with them more speedily.

Under the current arrangements, there is no formal legislative provision to delay or stay appeals where the appeal concerns an issue of law which is being challenged in another case. In practice, tribunals and commissioners have often delayed listing cases of this sort. However, there is great variation in practice between different tribunals. Thousands of cases which turn on the same point of law as a lead case may be decided before the lead case is resolved. If, following the decision in the lead case, it emerges that the tribunals have made erroneous decisions in these look-alike cases, each individual case has to be appealed to the commissioners, in order to have that erroneous decision overturned. This means that the commissioners have to hear a series of straightforward appeals where the point at issue is identical--namely the point of law decided in the lead case. It also means that overpayments of benefit may have been made which are impossible to recover.

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Under the new arrangements, the Secretary of State will identify which cases are look-alikes. Subsections (2) and (3) of Clause 26 allow her to require an appeal tribunal or commissioner to return these cases to her if an appeal rests entirely on the same issue of law as in the lead case. Apellants will be advised that their appeals will not proceed and that if the lead case is decided in their favour the Secretary of State will revise or supersede the decision under appeal in accordance with the decision in the lead case. Our position is that this is more sensible than requiring commissioners to handle blocks of straightforward look-alike appeals where there is no substantive point of law to consider. Each appeal is simply a matter of applying the law as it has been interpreted in the lead case.

This new provision will be better for claimants than the current arrangements and will not be a burden on the valuable resources of tribunals and commissioners. As soon as the lead case is settled, claimants can have any increased benefit due paid immediately, rather than wait for their case to be heard by a tribunal or the commissioner. Decisions on whether to stay appeals will be taken by the Secretary of State based on guidance from her legal advisers.

Perhaps I may deal with the constitutional point--if I may put it that way--raised by the noble Earl, Lord Russell. Decisions will not be taken on a whim; they are subject to the checks and balances which are well established in administrative law. In view of the concerns expressed, we intend to consult with the president of the Independent Tribunal Service and the Chief Social Security Commissioner on the preparation of the guidance on the identification of look-alike cases.

Anyone who believes that their circumstances are materially different to the lead case should contact the appropriate office of the Benefits Agency without delay. I can assure your Lordships that any representation made by the claimant, or any evidence which is provided, will receive urgent, careful and sympathetic consideration. The claimant will receive a full explanation of the decision as to whether his or her case is a "look-alike" or not.

If a new interpretation is put on a law that has been in operation for some time, most claimants affected by the new interpretation will have arrears paid back to one common date. That is fair and reasonable. Full arrears will be paid to the lead case. People whose claim was withheld by the Secretary of State, and those who had their appeal stayed or determined unfavourably due to the lead case will also be awarded any increase in their benefit from the date of their original application.

To deal with the point relating to the human rights issue, I do not accept that this is an interference with a fair trial by an independent body. The point is that there will already be an issue which has been determined by a tribunal or which is awaiting determination. All that is happening is that the decision in this case is being delayed pending the decision in the lead case.

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7.30 p.m.

Earl Russell: My Lords, perhaps I may ask for clarification. What if the tribunal thinks that it is not a look-alike case and the Secretary of State thinks it is?

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